Unit 2

The post-
apartheid
legal order
Prescribed material

• Introduction to Law and Legal Skills chapter

Uploaded on ClickUP – pp 10 – 48 (2.1 – 2.7 only) – (2.8
& 2.9 will be prescribed and discussed later during the
semester).
• Beginner’s Guide pp 56 – 60 (3.1)
• Lecture slides
The apartheid era

• The Apartheid era (1948 to 1994) in South Africa was the system of racial
segregation under an all-white government.
• Racial segregation, sanctioned by law, was widely practiced in South Africa before
1948. But when the National Party, led by Daniel F. Malan, gained office that year, it
extended the policy and gave it the name apartheid. (“separate development”)
• The implementation of apartheid, since the 1960s, was made possible through the
law.
• The Population Registration Act of 1950: classified all South Africans as either
Bantu (all Black Africans), Coloured (those of mixed race), or white. A fourth
category—Asian (Indian and Pakistani)—was later added.
• One of the other most significant acts in terms of forming the basis of the apartheid
system was the Group Areas Act of 1950: Established residential and business
sections in urban areas for each race, and members of other races were barred from
living, operating businesses, or owning land in them—which led to thousands of
The apartheid era
• It is important to note that the Group Areas Act was preceded by two others in 1954 and 1955,
which became known collectively as the Land Acts, completed a process that had begun
with similar Land Acts adopted in 1913 and 1936:
The end result was to set aside more than 80 percent of South Africa’s land for the white minority. To
help enforce the segregation of the races and prevent Blacks from encroaching on white areas, the
government strengthened the existing “pass” laws, which required people to carry documents
authorising their presence in restricted areas.
• Other acts also led to physical separation of the races:
Bantu Authorities Act of 1951, the government reestablished tribal organizations for Black Africans,
The Promotion of Bantu Self- Government Act of 1959, created 8 (later expanded to 10) African
homelands, or Bantustans.
The Bantu Homelands Citizenship Act of 1970 made every Black South African, irrespective of
actual residence, a citizen of one of the Bantustans, which were organized on the basis of ethnic and
linguistic groupings defined by white ethnographers. Black people were stripped of their South African
citizenship and thereby excluded from the South African body politic.
The apartheid era

• Bantustans (p.12 Legal Skills ) – Also known as homelands were

instrumental in the apartheid policy of comprehensive separation –
designated areas for the self-rule of black ethnic groups. Bantustans were
not really independent of the apartheid regime – the aim was to
denationalise black people and ensure that they did not have political and
civil rights in SA, More importantly, this policy aimed to achieve
segregation and division at two levels: between black and white people
and between various African ethnic groups.
• The South African government manipulated homeland politics so that compliant
chiefs controlled the administrations of most of those territories. Four of the
Bantustans—Transkei, Bophuthatswana, Venda, and Ciskei—were later granted
independence as republics, though none was ever recognized by a foreign
government, and the remaining Bantustans had varying degrees of self-government.
Regardless of their independence or self-governing status, all the
The apartheid era
• The Bantu Education Act (1953) Separate educational standards were established;
provided for the creation of state-run schools, which Black children were required to attend,
with the goal of training the children for the manual labour and menial jobs that the
government deemed suitable for those of their race.
• The Extension of University Education Act (1959) largely prohibited established
universities from accepting black students. students. The government created new ethnic
university colleges— one each for Coloureds, Indians, and Zulus and one for Sotho, Tswana,
and Venda students as well as a medical school for black people.
• Other laws were also passed to legalize and institutionalize the apartheid system.
• The Prohibition of Mixed Marriages Act (1949) and the Immorality Amendment Act
(1950) prohibited interracial marriage or sex.
• The Suppression of Communism Act (1950) defined communism and its aims broadly to
include any opposition to the government and empowered the government to detain anyone
it thought might further “communist” aims.
• The Indemnity Act (1961) made it legal for police officers to commit acts of violence, to
torture, or to kill in the pursuit of official duties.
Apartheid era

The main characteristics of apartheid law (Metz – characterised by 4 main types of

interconnecting oppressions, Beginner’s Guide 47-48):
• Political autocracy – domineering government with absolute political control;
denial of political voice through participation and law-making.
• Land dispossession – demarcation of areas for specific races – land ownership
limited.
• Civil liberty deprivation – denial of basic rights to dignity, equality, life, freedom
etc.
• Opportunity destruction – legal strategies that hindered black people from
obtaining educational and other opportunities
Article 2 of the International Convention of the Suppression and Punishment of the
Crime of Apartheid – p.48 Beginner’s Guide.
Parliamentary Sovereignty
Many of the apartheid government’s oppressive policies, practices and laws were made possible by
the fact that the three earlier constitutions entrenched the principle of parliamentary sovereignty
Parliamentary Sovereignty: The supreme controlling power to make and enforce decisions in the
form of legislation is exclusively vested in an elected parliament.
- Supreme sovereignty to make and enforce decisions relating to the population in a particular
territory, exclusive vests in parliament.
- Courts cannot declare invalid the laws made by a properly constituted parliament.
• PS is not in itself problematic –
Under apartheid uses its sovereign power to legitimise violence, entrench violation of human
rights and becomes vehicle for oppression and injustice
Parliament was not democratically elected
Apartheid enacted into law through proliferation of statutes that attempted to regulate and
enforce the policy of state racism
Legitimacy – the moral justification for the exercise of power
Colonial-apartheid
• It is important to point out that apartheid, and its main features as set out above was not
the main source and system of historical injustice in South Africa. Apartheid lasted for
a period of less than 50 years. In the bigger scheme of things colonialism and
colonisation are the main sources and systems that continue to negatively impact
South Africa.
• ‘South Africa’ is a creation of European colonists; came into being in 1910 after the British and
Boer colonies decided to form the Union. SA’s first constitution was negotiated at a colonists-
only National convention – African population was left out.
Main features of colonialism:
- Land dispossession, slavery and genocide of the San people
- Forced labour and the economic subjugation of conquered people
- The political subjugation of African kingdoms
- The subordination of indigenous religions, knowledge systems and legal orders
- Social segregation and the denial of civil and political rights of conquered people
Opposition to apartheid
• Although the government had the power to suppress virtually all criticism of its policies,
there was always some opposition to apartheid within South Africa. Black African groups,
with the support of some whites, held demonstrations and strikes, and there were many
instances of violent.
• Protest and of sabotage. One of the first—and most violent—demonstrations against
apartheid took place in Sharpeville on March 21, 1960; the police response to the
protesters’ actions was to open fire, killing about 69 Black Africans and wounding many
more.
• An attempt to enforce Afrikaans language requirements for Black African
students led to the Soweto Uprising in 1976; thousands of people were injured, and
hundreds died, including Hector Pieterson, whose death, captured in an iconic photo,
provoked international outrage.
Note: Military resistance and political organisation also constituted the two central methods of resistance
against colonialism and conquest – to be sure, as many as 19 wars of land expropriation and resistance (from
1659 to 1879) were fought in what is today the Western and Eastern Cape.
 International censure
Apartheid also received international censure.
South Africa was forced to withdraw from the Commonwealth in 1961 when it
became apparent that other member countries would not accept its racial policies.
The United Nations General Assembly denounced apartheid in 1973;
four years later the UN Security Council voted unanimously to impose a
mandatory embargo on the export of arms to South Africa.
In 1985 both the United Kingdom and the United States imposed selective
economic sanctions on South Africa.
In response to these and other pressures, the South African government abolished
the “pass” laws in 1986, although Black people were still prohibited from living in
designated white areas and the police were granted broad emergency powers .
 The fall of apartheid
Township revolts and rising inflation together with targeted international sanction against SA and the
increased political and cultural isolation of the country, forced apartheid regime to begin secret
negotiations with exiled and jailed ANC leaders.
On 2 Feb 1990 – FW de Klerk in landmark speech delivered at the opening of parliament – country on
road to drastic change – only negotiated understanding among the representative leaders of the entire
population could ensure peace in SA – country on brink of full-scale civil war. Announced the
unconditional release of political prisoners – including first democratically elected president, Nelson
Mandela.
• After speech negotiations for democratic SA began National Party and ANC committed themselves to
the resolution of climate of violence – ANC formally ended its armed struggle
• National Peace Acord concluded 14 September 1991 prepared the way for the first Convention for a
Democratic SA (CODESA) – formal round of negotiations started and 19 political groups were
represented at CODESA
• De Klerk announced whites-only referendum 17 March on the question of support on the continuation
of the reform process – more than 68% - ‘definitive closing of the book apartheid’ – De Klerk
The fall of apartheid

• Took more than 2 years to reach the point of first democratic elections.
• Negotiations broke down 2 times – 2 massacres – Boipatong massacre – 17 June
1992 – 46 people killed – ANC believed NP through police was complicit.
• Another massacre occurred on 7 September 1992 in Bisho, Ciskei-29 killed over
200 injured Defense Force was instructed the open fire on crowd of 80 000 led by
ANC officials and that
• 26 September 1992: record of understanding reached between ANC and
government – negotiations restarted in April 1993 – intense diplomatic pressure,
recognition that mass action could spin out of control, impending economic crisis.
• However, on 10 April 1993, senior ANC leader and secretary general of the SACP,
Chris Hani was assassinated – country on the brink of a race war.
The fall of apartheid

• How Nelson Mandela handled the situation – pulled country back from the brink – He
called for calm – p23 Legal Skills.
• Negotiations were intensified –
For reasons of the continuity of SA state, the apartheid parliament was required to
adopt the interim constitution into law – enacted into law on 18 November 1993.
• General election took place in April of 1994.
The interim Constitution, 1993
- Regulated the formal procedures, established during the negotiations for SA’s
transition from the apartheid legal order to a legal order founded on democratic
constitutionalism and the rule of law.
- Stipulated the procedure for the drafting and adoption of the final constitution
by first democratic parliament
- Postamble /epilogue that enshrined the values of the new constitutional
democracy
- ‘in order to advance reconciliation and reconstruction, amnesty shall be granted
in respect of acts, omissions and offences associated with political objectives
and committed in the course of the conflict of the past (p24.)
- Set in motion the process of amnesty for the perpetrators of crimes during
apartheid that was part of the course of business of the apartheid state;
eventually led to the creation of the TRC.
The interim Constitution

- Amnesty agreement was reached so late in the drafting of the interim constitution
that it had to be added to the postamble in the form of a general undertaking.
- Months before scheduled elections, SA police delivered a veiled warning to the ANC
that they would not support the safeguard the electoral process if they were to be
prosecuted.
- The idea was that the apartheid government and its security forces would not have
allowed transition to take place – or at least not peacefully – this conditional
amnesty dispensation that eventually came into existence was thus a
veritable product of the compromise in the negotiated settlement.
- The costs, pressure on the criminal justice system and civil court system would
have been immense.
• Not a blanket amnesty – not – The Truth and Reconciliation Commission established
The rule of law

• With the interim constitution, for the first time in the history of SA,
the concept of the Rule of Law was introduced– notion that the
same law applies equally to everyone. Where the rule of law
prevails, no one is above the law.
• All state conduct must be in accordance with and sanctioned
by the law.
The Truth and Reconciliation
Commission

Postamble set the scene for the creation of the TRC – the TRC was created in
1995 through the Promotion of National Unity and Reconciliation Act 34 of
1995
- Act provide for the establishment of the TRC (Committee on HR violations, a
committee on Amnesty and committee on Reparation and Rehabilitation
- TRC tasked with establishing as a complete picture as possible of the nature,
causes and extent of the gross hr violations committed during the period from 1
March 1960 (crimes during colonialism excluded)
- TRC to determine whereabouts and fate of such victims
- The crime of apartheid and other structure colonial crimes such as forces removals,
migrant labour system and the deliberate under-development of areas designates
as ‘black areas’ were excluded.
The Truth and Reconciliation
Commission

- Granting amnesty for persons who make full disclosure of all the relevant facts
relating to acts associated with a political objective committed in the course of the
conflicts of the past during said period.
- Beneficiaries of apartheid not included in the process / expected to take part.
- Aimed to give victims the opportunity to relate the violations they suffered.
- The taking of measures aimed at the granting of reparations to and the
rehabilitation and the restoration of the human and civil dignity of victims of
violations of human rights.
- TRC had to report to the nation about violations and victims
- TRC had to make recommendations aimed at the prevention of the commission of
gross hr violations.
Transitional Justice
• Transitional justice – alternative form of justice (as opposed to traditional justice or corrective
justice) – foregoes the logic of the offence, delict or a wrong committed by a perpetrator and
followed by a punishment or compensation to a victim.
Transitional justice refers to how societies respond to the legacies of massive and serious human
rights violations. It asks some of the most difficult questions in law, politics, and the social sciences
and grapples with innumerable dilemmas. While every context is unique, societies and individual
stakeholders the world over must find answers to the same difficult questions about whether, when,
and how to embark on a path toward a peaceful, just, and inclusive future where past crimes have
been acknowledged and redressed and citizens and leaders agree that violence and human rights
abuses can never again happen. The journey is a long and challenging one that requires the
meaningful participation of victims together with all sectors of the society.
- Full disclosure by people seeking amnesty – victims could get answers in terms of what
happened to their loved ones; help establish a complete picture of the past; perpetrators not
under the threat of prosecution.
- Truth and reparation for victims was intended to counterbalance the amnesty for perpetrators.
The Azapo-case

• Azanian People’s Organisation (AZAPO) and others v

President of the Republic of South Africa 1995 (4) SA
671 (CC)
• p. 32 – legal skills
Exercise:

Write an essay of two pages in which you explain some

of the main criticisms of how the TRC interpreted its
mandate, the process itself, and the government’s
failure to implement the TRC’s recommendations
adequately.
pp 39 – 41 – Legal skills chapter
The adoption of the final Constitution

• In terms of sections 68 and 71 of the interim constitution, the new

government, in its capacity as the Constitutional Assembly, was tasked with
drafting and adopting a final Constitution that would comply with 34
predetermined constitutional principles that were contained in schedule 4 of
the Constitution.
• The 34 constitutional principles were a framework for the creation of a
democratic state with a supreme constitution in which the fundamental
rights and freedoms of all citizens are protected. Section 71(2) of the
interim Constitution also provided that the final Constitution would
only have force and effect once the Constitutional Court had
certified that the proposed text complied with the 34 principles.
The final constitution, 1996

• Constitutional Assembly adopted a final version of the text and submitted it to

the Constitutional Court for certification on 8 May 1996.
• Certification is the process in term of which the Constitutional Court
‘measured’ the proposed text against the 34 principles and decided to certify
the text.
• CC declined to certify as the text did not fully comply with the 34 principles.
• Constitutional Assembly reconvened and on 11 October 1996, submitted an
amended text to the CC for certification.
• This time, the CC certified the text and President Mandela signed it into law
on 10 December 1996 at Sharpeville and it came into effect on 4 February
1997.
Constitutional Supremacy

• The interim Constitution brought an end to the reign of parliamentary sovereignty vested
in a minority rule.
• Constitution is supreme – the notion of constitutional supremacy is inextricably linked
and intertwined with the rule of law – any law or conduct that is inconsistent with the
constitution is invalid. When parliament enacts legislation that is found to be
inconsistent with the constitution, such legislation will be declared invalid.
• In addition, any conduct by government, institutions or individuals that is found to be
inconsistent with the constitution is invalid.
• This also goes for the common law and customary law – must be consistent with the
constitution.
• Further, CC, SCA, HH have the inherent power to develop the common law and
customary law and such development must ‘promote the spirit, purport, and object of
the Bill of Rights (ss173 & 39(2) of the Constitution).
Substantive equality

The constitution recognises that as a result of the

unfair discrimination in the past, vast inequalities exist
in SA society.
Section 9(2) of the constitution provides that in order to
promote the achievement of equality, legislative and
other measures can be taken to advance those against
whom unfair discrimination was exercised in the past.
This section provides for substantive equality -
Formal & substantive equality
• Formal equality or equality as consistency requires that all persons who are in the same
situation be accorded the same treatment and that people should not be treated differently
because of arbitrary characteristics such as religion, race or gender.
• A formal approach to equality therefore only requires equal application of the law without
further examination of the particular circumstances or context of the individual or group and,
consequently, the content and the potential discriminatory impact of the law and/or policy
under review.
• The preferred notion of equality is substantive equality. A substantive approach to equality
orients the right to equality from a negatively- oriented right of non-discrimination to a
positively-oriented right to substantive equality.
• It does this by ensuring that laws or policies do not reinforce the subordination of groups
already suffering social, political or economic disadvantage and requires that laws treat
individuals as substantive equals, recognising and accommodating peoples’ differences.
Analysing the effects of laws, policies and practices on a disadvantaged individual or group,
substantive equality is concerned with eliminating barriers which exclude certain groups from
participation in the workplace, politics or celebrating their different cultures and practices .
Liberal democracy
• The constitutional court is the final arbiter in the determination of
whether the law or conduct is inconsistent with the constitution
and therefore invalid.
• CC and entire judiciary – crucial role un upholding constitutional
supremacy.
• Why does unelected judges have the power to declare decisions
of a democratically elected government unconstitutional?
• Known as the counter-majoritarian dilemma – tension between
human rights and democracy (where democracy is strictly
defined in the sense of majoritarian rule).
Liberal democracy
• Answer goes to the heart of the meaning of constitutional democracy –
The constitution regulates the governmental power of the state- constitution is to
establish a government with enough power to govern but, at the same time, to
structure and control that power so as to prevent it from being used oppressively.
Liberal democracy: democracy in which the rule of the majority is limited. – rule of the
majority occurs within certain predetermined channels, according to prearranged
procedures as contained in the constitution.
HR- subjects have certain claims against the state, regardless of whether they are the
claims of or represent the interests of a majority of the population or those of a minority.
Section 10 of the Constitution – everyone has inherent dignity and the right to have
their dignity respected and protected. (held by every individual regardless of whether
they are part of the majority or not).
GOVERNMENTAL POWER IS DEMARCATED BY THE CONSTITUTION.
Separation of powers
• System where governmental power is divided between the branches of
government, namely, the legislature, the executive, and the judiciary.
• Government power – three branches – legislature (parliament); the executive
(President and the cabinet); the judiciary (courts). Trias politica.
• CC in the certification case:
“The principle of the separation of powers, on the one hand, recognizes the
functional independence of branches of government. On the other hand, the
principle of checks and balances focuses on the desirability of ensuring that
the constitutional order, as totality, prevents the branches of government
from usurping power from one another.”
Careful balancing of state power – this balancing is crucial for the legitimacy of
government and the stability of the country.
Main points
• The unit recounted the story of SA’s progression from the apartheid legal order to the constitutional
democracy we live in today. It places the negotiated settlement between the apartheid government and
the liberation movements in the context of significant historical moments that challenged the advance
of post-apartheid SA.
• Racial segregation, sanctioned by law, was widely practiced in South Africa before 1948 (colonial-
apartheid).
• In terms of the interim constitution, the new government had to draft and adopt a final constitution that
would comply with 34 predetermined constitutional principles. The final constitution came into effect on
4 Feb 1997.
• The TRC was created in terms of PNURA to investigate the nature, causes and extent of gross violations
of human rights resulting from past conflicts (- 1 March 1960).
• Parliamentary sovereignty means that the supreme controlling power (sovereignty) to make and enforce
decisions in the form of legislation is exclusively vested in an elected parliament. When a parliament,
constituted by a minority as was the case in apartheid SA, uses its sovereignty to entrench the violation
of human rights, it becomes a vehicle for oppression and injustice – illegitimate.
Main points
• Today, Constitution is supreme – the notion of constitutional supremacy is intertwined with the rule
of law. Constitutional supremacy means that any law or conduct that is inconsistent with the
constitution is invalid.
• As the court of final instance, the CC is the final arbiter in the determination of whether a law or
conduct is inconsistent with the constitution and therefore invalid.
• The rule of law means that the same law applies equally to everyone. It also means that all state
conduct must be in accordance with and sanctioned by the law.
• In a liberal democracy the rule of the majority is limited by predetermined procedures as contained
in a constitution.
• In SA, the liberal elements of democracy also imply that governmental power is divided between the
three branches of government, namely, the legislature (parliament), the executive (President and
cabinet / ministers), the judiciary (courts). This is known as the separation of powers.
• The SA constitution aims to further substantive equality – to ensure that laws or policies do not
reinforce the subordination of groups already suffering social, political or economic disadvantage.
Substantive equality is concerned with eliminating barriers which exclude certain groups from
participation in the labour force, politics or relealising different cultures and practices.